1860. MALTBY U. MURRELLS. May 22 & 23. note payable on within "The Procedure on LUSH, on behalf of Patrick Johnson, the official assignee A promissory of the defendant, a bankrupt, had obtained a rule calling demand is on the plaintiff to shew cause why the writ of summons Summary issued in this cause, and all subsequent proceedings thereon, as well as the judgment and execution, should not be set aside as void and irregular and why the amount levied under the execution herein should not be repaid by the plaintiff to the said official assignee. The affidavits in support of the application stated, that in the month of December, 1858, the defendant purchased of the plaintiff his stock and business of a stationer, and for part of the purchase money the defendant gave the plaintiff his note of hand, dated the 13th January, 1859, for 12407., payable on demand. On the 15th March, 1860, the note remaining unpaid, the defendant was served with a writ of summons, issued and bearing date that day, in the form provided by "The Summary Procedure on Bills of Exchange Act, 1855," with a copy of the promissory note, including the date, indorsed thereon. On the 27th of the same month judgment was signed and execution issued, of which the defendant had notice from the plaintiff, and on the 28th the sheriff seized. In addition to the note of hand the defendant assigned to the plaintiff, by way of mortgage, the defendant's contingent interest in certain stock and a policy of assurance for 10007., and the defend on Bills of Exchange Act, 1855," (18 & 19 Vict. six months 3. 67), and the within which, after the note is due, a writ may be issued under that Act, run from the date of the note. But a writ issued after that period, though irregular, is not void, and the irre gularity may be waived by the conduct of the defendant. where the plaintiff having served the Therefore, defendant with a writ under that Act, more than six months after the date of a promissory note payable and having signed judgment and on demand, issued execution, the de fendant requested him to instruct the sheriff to withdraw, after a levy of part of the judgment debt, (the plaintiff also holding a mortgage security), and authorized the sheriff to re-enter at any time and levy the remainder of the debt:-Held, that the defendant had precluded himself from applying to set aside the writ, judgment, and execution; and that the official assignee under his bankruptcy was in the same situation. 1860. MALTBY v. MURRELLS. ant having pointed out that it would therefore be unjust to sell to the full amount of the judgment, the plaintiff con sented to reduce the levy to 9007., upon the defendant signing the following paper : "In the Exchequer of Pleas. "Between John Maltby, plaintiff, "and "Thomas Murrells, defendant. "I hereby request you to instruct the sheriff not to levy under the writ of fieri facias issued on the judgment in this action to the full amount indorsed thereon; but inasmuch as the judgment debt in this action is secured to a certain extent by the assignment, by way of mortgage, of the 13th of January, 1859; and inasmuch as it will be greatly to the benefit of my other creditors that the ornamental fixtures and shop fittings should not be now sold under your execution, I hereby request you to instruct the sheriff to withdraw under such execution when he shall have realized so much of the said judgment debt as you may consider not covered by the above mentioned security, and this shall be your authority for the same, so far as any authority on my part can be requisite: and I hereby authorize the sheriff to re-enter at any time under the said writ of fieri facias, or under any other writ of fieri facias, upon the judgment in this action, and to levy so much of the said judgment debt as may not be satisfied by the levy now made. "Dated the 30th day of March, 1860. "To the above named plaintiff. "Yours, &c. "Thomas Murrells." The defendant also stated that, before signing the said paper, he endeavoured to see his solicitor for advice, but could not meet with him, and he then returned home and signed the paper without having had an opportunity of advising with his solicitor, and in order that the whole TRINITY TERM, 23 VICT. of his effects might not be swept away by the plaintiff, but that at least a portion thereof should be left for his other creditors, and without intending in any way to admit the plaintiff's right to issue execution in the action, or the legality or regularity of the proceedings; that he was wholly unaware that any legal objection existed to the writ or proceedings in the action, and he had not then shewn the copy of the writ so served upon him to any attorney or any other person, or consulted anyone about it, but had acted up to that time solely under the guidance of the plaintiff's attorney; that had he been aware that the writ or proceedings were a nullity or irregular, he would never have signed the said paper. On the 30th of March the sheriff sold and assigned to the plaintiff a portion of the defendant's stock and goods to the value of 8301., the defendant himself assisting in making out the inventory. On the 2nd of April the defendant was adjudicated bankrupt. On the 3rd of April a summons was taken out at Chambers to set aside the proceedings as void or irregular, the same having been taken under "The Summary Procedure on Bills of Exchange Act, 1855," although the Act did not apply to the circumstances of the case, and the action was not brought within six months after the note became due and payable. Martin, B., beforc whom the summons was heard, referred the parties to the Court. Lush having obtained a rule to set aside the proceedings, Bovill and Honyman now shewed cause.-First, the writ issued in proper time, and was regular. A promissory note payable on demand is within the provisions of "The Summary Procedure on Bills of Exchange Act, 1855" (18 & 19 Vict. c. 67). Though such a note is for many purposes considered due and payable from the time of its 1860. MALTBY v. MURRELLS. 1860. MALTBY v. MURRELLS. date, as for instance under the Statute of Limitations, yet (a) 4 B. & C. 325. as the defendant. Moreover, the proceedings on the 30th of March, and subsequently, amount to an equitable assignment of the goods. Lush and Joseph Brown, in support of the rule.-The proceedings are altogether void. The 18 & 19 Vict. c. 67, has introduced a course of procedure unknown to the common law, and unless the case is within it the proceedings are coram non judice. The 1st section of the Act defines the cases to which its provisions apply, viz., "all actions upon bills of exchange or promissory notes commenced within six months after the same shall have become due and payable." Assuming that a promissory note payable on demand is within the meaning of that Act, this action was commenced more than six months after the note was due. Norton v. Ellam (a) is an authority that a promissory note payable on demand is due the moment it is made. In Rowe v. Young (b), Bayley, J., said: "If a man make a note payable on demand, it is settled by law that a special demand need not be stated in the declaration nor proved upon the trial." It is clear, therefore, that the plaintiff might have commenced an action by a writ of summons as soon as the note was made. The subsequent judgment and execution cannot render valid a proceeding which was void in its inception. The distinction between an irregularity, and a nullity is thus pointed out in 2 Chit. Arch. p. 1375, 9th ed.:-"Where the proceeding adopted is that prescribed by the practice of the Court, and the error is merely in the manner of taking it, such an error is an irregularity, and may be waived by the laches or subsequent acts of the opposite party; but where the proceeding itself is altogether unwarranted, and different from that which, if any, ought to have been taken, then the proceeding is a nullity, and cannot be waived by any act of the party against whom it has (a) 2 M. & W. 461. (b) 2 Brod. & B. 165. 232. 1860. MALTBY v. MURRELLS. |